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EXHIBIT 10.19
CONOCO INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement"), made and
entered into as of the ____ day of October, 1998, by and between Conoco Inc., a
Delaware corporation originally incorporated under the name "Conoco Energy
Company" (the "Company"), and _________ ("Indemnitee").
W I T N E S S E T H:
WHEREAS, Indemnitee is currently serving or is about to begin
serving as a director and/or officer of the Company and/or in another Corporate
Status, and Indemnitee is willing, subject to, among other things, the
Company's execution and performance of this Agreement, to continue in or assume
such capacity or capacities; and
WHEREAS, the By-Laws of the Company provide that the Company
shall indemnify and advance expenses to all directors and officers of the
Company in the manner set forth therein and to the fullest extent permitted by
applicable law, and the Company's Certificate of Incorporation provides for
limitation of liability for directors; and
WHEREAS, in order to induce Indemnitee to provide services as
contemplated hereby, the Company has deemed it to be in its best interest to
enter into this Agreement with Indemnitee;
NOW, THEREFORE, in consideration of Indemnitee's agreement to
provide services to the Company and/or certain of its affiliates as
contemplated hereby, the mutual agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto stipulate and agree as follows:
ARTICLE I
Certain Definitions
As used herein, the following words and terms shall have the
following respective meanings (whether singular or plural):
"Change of Control" means a change in control of the Company
after both the date of the closing of the initial public offering (the "IPO")
of the Company's Class A Common Stock to the public for cash that has been
registered on a registration statement that has been filed with and declared
effective by the Securities and Exchange Commission and after the date
Indemnitee
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acquired his Corporate Status, which shall be deemed to have occurred in any
one of the following circumstances occurring after such date: (i) there shall
have occurred an event required to be reported with respect to the Company in
response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any
similar item or any similar schedule or form) promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), regardless of whether
the Company is then subject to such reporting requirement; (ii) any "person"
(as such term is used in Sections 13(d) and 14(d) of the Exchange Act) other
than DuPont shall have become the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing 15% or more of the combined voting power of the Company's then
outstanding voting securities; (iii) the Company is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy contest, as a
consequence of which members of the Board of Directors in office immediately
prior to such transaction or event constitute less than a majority of the Board
of Directors thereafter; or (iv) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors (including, for this purpose, any new director whose election or
nomination for election by the Company's stockholders was approved by a vote of
at least two-thirds of the directors then still in office who were directors at
the beginning of such period) cease for any reason to constitute at least a
majority of the Board of Directors.
"Corporate Status" describes the status of Indemnitee as a
director, officer, employee, agent or fiduciary of the Company or of any other
company, partnership, limited liability company, association, joint venture,
trust, employee benefit plan or other enterprise that Indemnitee is or was
serving at the request of the Company.
"Court" means the Court of Chancery of the State of Delaware
or any other court of competent jurisdiction.
"DGCL" means the Delaware General Corporation Law.
"DuPont" means E.I. du Pont de Nemours & Company, Inc., a
Delaware corporation, and its subsidiaries (other than the Company and its
subsidiaries).
"Expenses" shall include all attorneys' fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, or being or preparing to be a witness in a
Proceeding.
"Independent Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporate law and neither currently is,
nor in the five years previous to its selection or appointment has been,
retained to represent (i) the Company or Indemnitee in any matter material to
either such party (other than with respect to matters concerning the rights of
Indemnitee under this Agreement or of other indemnitees under similar
indemnification agreements) or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder.
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"Matter" is a claim, a material issue or a substantial
request for relief.
"Proceeding" includes any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding, whether civil
(including intentional and unintentional tort claims), criminal, administrative
or investigative and whether instituted by or on behalf of the Company or any
other party, or any inquiry or investigation that Indemnitee in good faith
believes might lead to the institution of any such action, suit or other
proceedings hereinabove listed, except such as is initiated by Indemnitee
pursuant to Section 6.1 of this Agreement to enforce his rights under this
Agreement.
ARTICLE II
Services by Indemnitee
Section 2.1. Services by Indemnitee. Indemnitee agrees to
serve or continue to serve in his current capacity or capacities as a director,
officer, employee, agent or fiduciary of the Company. Indemnitee may also agree
to serve (the agreement so to serve being in the sole discretion of
Indemnitee), as the Company may request from time to time, as a director,
officer, employee, agent or fiduciary of any other company, partnership,
limited liability company, association, joint venture, trust or other
enterprise in which the Company has an interest. Indemnitee and the Company
each acknowledge that they have entered into this Agreement as a means of
inducing Indemnitee to serve the Company in such capacities. Indemnitee may at
any time and for any reason resign from such position or positions (subject to
any other contractual obligation or any obligation imposed by operation of
law). The Company shall have no obligation under this Agreement to continue
Indemnitee in any such position for any period of time and shall not be
precluded by the provisions of this Agreement from removing Indemnitee from any
such position at any time.
ARTICLE III
Indemnification
Section 3.1. General. If Indemnitee was or is a party or is
threatened to be made a party to any Proceeding, the Company shall, to the
fullest extent permitted by applicable law in effect on the date hereof, and to
such greater extent as applicable law may thereafter permit, within 30 days
after written demand is presented to the Company, indemnify and hold Indemnitee
harmless from and against any and all losses, liabilities, claims, damages,
judgments, fines, penalties, amounts paid in settlement (subject to Section
7.2) and Expenses (including all interest, assessments and other charges paid
or payable in connection with or in respect of such listed items), whatsoever
(i) arising out of any event or occurrence related to the fact that Indemnitee
is or was a director or officer of the Company, is or was serving in another
Corporate Status, consented to be named as a person to be elected as a director
of the Company in connection with the IPO, or by reason of anything done or not
done by Indemnitee in any such capacity and (ii) incurred in connection with
such Proceeding.
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Section 3.2. Successful Proceeding. Notwithstanding anything
to the contrary set forth herein (other than Section 3.3), if Indemnitee is, by
reason of his Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, he shall be indemnified against all losses,
liabilities, claims, damages, judgments, fines, penalties, amounts paid in
settlement (subject to Section 7.2) and Expenses (including all interest,
assessments and other charges paid or payable in connection with or in respect
of such listed items), actually and reasonably incurred by him or on his behalf
in connection therewith. Notwithstanding anything to the contrary set forth
herein (other than Section 3.3), if Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to any Matter in
such Proceeding, the Company shall indemnify Indemnitee against all losses,
liabilities, claims, damages, judgments, fines, penalties, amounts paid in
settlement (subject to Section 7.2) and Expenses (including all interest,
assessments and other charges paid or payable in connection with or in respect
of such listed items), actually and reasonably incurred by him or on his behalf
relating to such Matter. The termination of any Matter in such a Proceeding by
dismissal, with or without prejudice, shall be deemed to be a successful result
as to such Matter. To the extent that the Indemnitee is, by reason of his
Corporate Status, a witness in any Proceeding in which the Indemnitee is not a
party or threatened to be made a party, he shall be indemnified against all
Expenses actually and reasonably incurred by him or on his behalf in connection
therewith.
Section 3.3. Claims Initiated by Indemnitee. Notwithstanding
anything to the contrary set forth herein, prior to a Change of Control,
Indemnitee shall not be entitled to indemnification (including any advancement
of Expenses) pursuant to this Agreement in connection with any Proceeding
initiated or claim made by Indemnitee, unless either (i) the Board of Directors
has authorized or consented to the initiation of such Proceeding or the making
of such claim or (ii) such Proceeding or claim seeks to enforce Indemnitee's
rights under this Agreement.
ARTICLE IV
Advancement of Expenses
Section 4.1. Advances. In the event of any threatened or
pending Proceeding in which Indemnitee is a party or is involved and that may
give rise to a right of indemnification under this Agreement, following written
request to the Company by Indemnitee, the Company shall pay to Indemnitee,
within 10 days of such request, amounts to cover Expenses incurred by
Indemnitee in such Proceeding in advance of its final disposition upon the
receipt by the Company of (i) a written undertaking executed by or on behalf of
Indemnitee providing that Indemnitee will repay the advance if it shall
ultimately be determined that Indemnitee is not entitled to be indemnified by
the Company as provided in this Agreement and (ii) satisfactory evidence as to
the amount of such Expenses.
Section 4.2. Repayment of Advances or Other Expenses.
Indemnitee agrees that Indemnitee shall reimburse the Company for all Expenses
advanced by the Company pursuant to Section 4.1 in the event and only to the
extent that it shall be determined pursuant to the provisions of this Agreement
or by final judgment or other final adjudication under the provisions of any
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applicable law (as to which all rights of appeal therefrom have been exhausted
or lapsed) that Indemnitee is not entitled to be indemnified by the Company for
such Expenses.
ARTICLE V
Procedure for Determination of Entitlement
to Indemnification
Section 5.1. Request for Indemnification. To obtain
indemnification, Indemnitee shall submit to the Secretary of the Company a
written claim or request. Such written claim or request shall contain
sufficient information reasonably to inform the Company about the nature and
extent of the indemnification or advance sought by Indemnitee. The Secretary of
the Company shall promptly advise the Board of Directors of such request.
Section 5.2. Determination of Entitlement; No Change of
Control. If there has been no Change of Control at the time the request for
indemnification is submitted, Indemnitee's entitlement to indemnification shall
be determined in accordance with Section 145(d) of the DGCL. If entitlement to
indemnification is to be determined by Independent Counsel pursuant to Section
145(d) of the DGCL, the Company shall furnish written notice to Indemnitee
within 10 days after receipt of the request for indemnification, specifying the
identity and address of Independent Counsel. The Indemnitee may, within 10 days
after such written notice of selection shall have been given, deliver to the
Company a written objection to such selection; provided, however, that such
objection may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of "Independent Counsel" as defined in
Article I, and the objection shall set forth with particularity the factual
basis of such assertion. If such written objection is so made and
substantiated, the Independent Counsel so selected may not serve as Independent
Counsel unless and until such objection is withdrawn or a court has determined
that such objection is without merit. If (i) the determination of entitlement
to indemnification is to be made by Independent Counsel pursuant to this
Section and (ii) within 20 days after submission by Indemnitee of a written
request for indemnification pursuant to Section 5.1, no Independent Counsel
shall have been selected and not objected to, the Company or the Indemnitee may
petition the Court of Chancery or other court of competent jurisdiction for
resolution of any objection which shall have been made by the Indemnitee to the
Company's selection of Independent Counsel and/or for the appointment as
Independent Counsel of a person selected by the petitioned court or by such
other person as the petitioned court shall designate, and the person with
respect to whom all objections are so resolved or the person so appointed shall
act as Independent Counsel under this Section. If (i) Independent Counsel does
not make any determination respecting Indemnitee's entitlement to
indemnification hereunder within 90 days after receipt by the Company of a
written request therefor and (ii) any judicial proceeding or arbitration
pursuant to Section 6.1 is then commenced, Independent Counsel shall be
discharged and relieved of any further responsibility in such capacity (subject
to the applicable standards of professional conduct then prevailing).
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Section 5.3. Determination of Entitlement; Change of Control.
If there has been a Change of Control at the time the request for
indemnification is submitted, Indemnitee's entitlement to indemnification shall
be determined in a written opinion by Independent Counsel selected by
Indemnitee. Indemnitee shall give the Company written notice advising of the
identity and address of the Independent Counsel so selected. The Company may,
within 10 days after such written notice of selection shall have been given,
deliver to the Indemnitee a written objection to such selection; provided,
however, that such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of "Independent
Counsel" as defined in Article I, and the objection shall set forth with
particularity the factual basis of such assertion. If such written objection is
so made and substantiated, the Independent Counsel so selected may not serve as
Independent Counsel unless and until such objection is withdrawn or a court has
determined that such objection is without merit. If (i) the determination of
entitlement to indemnification is to be made by Independent Counsel pursuant to
this Section and (ii) within 20 days after submission by Indemnitee of a
written request for indemnification pursuant to Section 5.1, no Independent
Counsel shall have been selected and not objected to, the Company or the
Indemnitee may petition the Court of Chancery or other court of competent
jurisdiction for resolution of any objection which shall have been made by the
Company to the Indemnitee's selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the petitioned court
or by such other person as the petitioned court shall designate, and the person
with respect to whom all objections are so resolved or the person so appointed
shall act as Independent Counsel under this Section. If (i) Independent Counsel
does not make any determination respecting Indemnitee's entitlement to
indemnification hereunder within 90 days after receipt by the Company of a
written request therefor and (ii) any judicial proceeding or arbitration
pursuant to Section 6.1 is then commenced, Independent Counsel shall be
discharged and relieved of any further responsibility in such capacity (subject
to the applicable standards of professional conduct then prevailing).
Section 5.4. Presumptions and Burden of Proof; Procedures of
Independent Counsel. In making a determination with respect to entitlement to
indemnification hereunder, the person, persons or entity making such
determination shall presume that Indemnitee is entitled to indemnification
under this Agreement, and the Company shall have the burden of proof to
overcome that presumption in connection with the making by any person, persons
or entity of any determination contrary to that presumption.
Except in the event that the determination of entitlement to
indemnification is to be made by Independent Counsel, if the person or persons
empowered under Section 5.2 to determine entitlement to indemnification shall
not have made and furnished to Indemnitee in writing a determination within 60
days after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been
made and Indemnitee shall be entitled to such indemnification. The termination
of any Proceeding or of any Matter therein, by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not of
itself adversely affect the right of Indemnitee to indemnification or create a
presumption that Indemnitee did not act in good faith and in a manner that he
reasonably believed to be in or not opposed to the best interests of the
Company, or with respect to any criminal
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Proceeding, that Indemnitee had reasonable cause to believe that his conduct
was unlawful. A person who acted in good faith and in a manner he reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit plan of the Company shall be deemed to have acted in a manner
not opposed to the best interests of the Company.
For purposes of any determination hereunder, a person shall
be deemed to have acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company, or, with respect to
any criminal action or Proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on good faith reliance on the
records or books of account of the Company or another enterprise or on
information supplied to him by the officers of the Company or another
enterprise in the course of their duties or on the advice of legal counsel for
the Company or another enterprise or on information or records given or reports
made to the Company or another enterprise by an independent accountant or by an
appraiser or other expert selected with reasonable care by the Company or
another enterprise. The term "another enterprise" as used in this Section shall
mean any other corporation or any partnership, limited liability company,
association, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Company as a
director, officer, employee or agent. The provisions of this paragraph shall
not be deemed to be exclusive or to limit in any way the circumstances in which
an Indemnitee may be deemed to have met the applicable standards of conduct for
determining entitlement to rights under this Agreement.
Section 5.5. Independent Counsel Expenses. The Company shall
pay any and all reasonable fees and expenses of Independent Counsel incurred
acting pursuant to this Article and in any proceeding to which it is a party or
witness in respect of its investigation and written report and shall pay all
reasonable fees and expenses incident to the procedures in which such
Independent Counsel was selected or appointed. No Independent Counsel may serve
if a timely objection has been made to his selection until a court has
determined that such objection is without a reasonable basis.
ARTICLE VI
Certain Remedies of Indemnitee
Section 6.1. Adjudication. In the event that (i) a
determination is made pursuant to Section 5.2 or 5.3 that Indemnitee is not
entitled to indemnification under this Agreement; (ii) advancement of Expenses
is not timely made pursuant to Section 4.1; (iii) Independent Counsel is to
determine Indemnitee's entitlement to indemnification hereunder, but does not
make that determination within 90 days after receipt by the Company of the
request for that indemnification; or (iv) payment of indemnification is not
made within 10 days after a determination of entitlement to indemnification has
been made or deemed to have been made pursuant to Section 5.2, 5.3 or 5.4,
Indemnitee shall be entitled to an adjudication in an appropriate court of the
State of Delaware, or in any other court of competent jurisdiction, of his
entitlement to such indemnification or advancement of Expenses. In the event
that a determination shall have been made that Indemnitee
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is not entitled to indemnification, any judicial proceeding or arbitration
commenced pursuant to this Section 6.1 shall be conducted in all respects as a
de novo trial on the merits and Indemnitee shall not be prejudiced by reason of
that adverse determination. In any judicial proceeding commenced pursuant to
this Section 6.1, the Company shall have the burden of proving that Indemnitee
is not entitled to indemnification or advancement of Expenses, as the case may
be. If a determination shall have been made or deemed to have been made that
Indemnitee is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding commenced pursuant to this Section
6.1, or otherwise.
The Company shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 6.1 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable, and
shall stipulate in any such proceeding that the Company is bound by all
provisions of this Agreement. In the event that Indemnitee, pursuant to this
Section 6.1, seeks a judicial adjudication to enforce his rights under, or to
recover damages for breach of, this Agreement, (i) Indemnitee shall be entitled
to recover from the Company, and shall be indemnified by the Company against,
any and all Expenses actually and reasonably incurred by him in such judicial
adjudication, regardless of whether he prevails therein, and (ii) any
determination made pursuant to Section 5.2 or 5.3 that Indemnitee is not
entitled to indemnification under this Agreement shall not be binding and
Indemnitee shall not be required to reimburse the Company for any Expenses
advanced pursuant to Section 4.1 until it shall be determined by final judgment
or other final adjudication under the provisions of any applicable law (as to
which all rights of appeal therefrom have been exhausted or lapsed) that
Indemnitee is not entitled to be indemnified by the Company for such Expenses.
ARTICLE VII
Participation by the Company
Section 7.1. Participation by the Company. With respect to
any such Proceeding as to which Indemnitee notifies the Company of the
commencement thereof, the Company will be entitled to participate therein at
its own expense and, except as otherwise provided below, to the extent that it
may wish, the Company (jointly with any other indemnifying party similarly
notified) will be entitled to assume the defense thereof, with counsel
reasonably satisfactory to Indemnitee. After receipt of notice from the Company
to Indemnitee of the Company's election so to assume the defense thereof, the
Company will not be liable to Indemnitee under this Agreement for any legal or
other Expenses subsequently incurred by Indemnitee in connection with the
defense thereof other than reasonable costs of investigation, Expenses incurred
in being or preparing to be a witness or in assisting, at the request of the
Company, with the defense, and as otherwise provided below. At the request of
the Company, Indemnitee agrees to use his reasonable efforts to assist in such
defense. Indemnitee shall have the right to employ his own counsel in such
Proceeding but the fees and expenses of such counsel incurred after notice from
the Company of its assumption of the defense thereof shall be at the expense of
Indemnitee unless (i) the employment of counsel by Indemnitee has been
authorized by the Company, (ii) Indemnitee shall have reasonably concluded that
there is
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a conflict of interest between the Company and Indemnitee in the conduct of the
defense of such action or (iii) the Company shall not in fact have employed
counsel to assume the defense of such action, in each of which cases the fees
and expenses of counsel employed by Indemnitee shall be subject to
indemnification pursuant to the terms of this Agreement. The Company shall not
be entitled to assume the defense of any Proceeding brought in the name of or
on behalf of the Company or as to which Indemnitee shall have made the
conclusion provided for in (ii) above.
Section 7.2. Settlements. The Company shall not be liable to
indemnify Indemnitee under this Agreement for any amounts paid in settlement of
any action or claim effected without its written consent, which consent shall
not be unreasonably withheld. The Company shall not settle any action or claim
in any manner that would impose any limitation or unindemnified penalty on
Indemnitee without Indemnitee's written consent, which consent shall not be
unreasonably withheld.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Nonexclusivity of Rights. The rights of
indemnification and advancement of Expenses as provided by this Agreement shall
not be deemed exclusive of any other rights to which Indemnitee may at any time
be entitled to under applicable law, the Company's Certificate of
Incorporation, the Company's Bylaws, any agreement, a vote of stockholders or a
resolution of directors, or otherwise. No amendment, alteration or repeal of
this Agreement or any provision hereof shall be effective as to any Indemnitee
for acts, events and circumstances that occurred, in whole or in part, before
such amendment, alteration or repeal. The provisions of this Agreement shall
continue as to an Indemnitee whose Corporate Status has ceased for any reason
and shall inure to the benefit of his heirs, executors and administrators.
Section 8.2. Insurance and Subrogation. The Company shall not
be liable under this Agreement to make any payment of amounts otherwise
indemnifiable hereunder if, but only to the extent that, Indemnitee has
otherwise actually received such payment under any insurance policy, contract,
agreement or otherwise.
In the event of any payment hereunder, the Company shall be
subrogated to the extent of such payment to all the rights of recovery of
Indemnitee, who shall execute all papers required and take all action
reasonably requested by the Company to secure such rights, including execution
of such documents as are necessary to enable the Company to bring suit to
enforce such rights.
Section 8.3. Acknowledgment of Certain Matters. Both the
Company and Indemnitee acknowledge that in certain instances, applicable law or
public policy may prohibit indemnification of Indemnitee by the Company under
this Agreement or otherwise. Indemnitee understands and acknowledges that the
Company has undertaken or may be required in the future to undertake, by the
Securities and Exchange Commission, to submit the question of indemnification
to a court in
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certain circumstances for a determination of the Company's right under public
policy to indemnify Indemnitee.
Section 8.4. Amendment. This Agreement may not be modified or
amended except by a written instrument executed by or on behalf of each of the
parties hereto.
Section 8.5. Waivers. The observance of any term of this
Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively) by the party entitled to enforce such
term only by a writing signed by the party against which such waiver is to be
asserted. Unless otherwise expressly provided herein, no delay on the part of
any party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any waiver on the part of any party
hereto of any right, power or privilege hereunder operate as a waiver of any
other right, power or privilege hereunder nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder.
Section 8.6. Entire Agreement. This Agreement and the
documents referred to herein constitute the entire agreement between the
parties hereto with respect to the matters covered hereby, and any other prior
or contemporaneous oral or written understandings or agreements with respect to
the matters covered hereby are superseded by this Agreement.
Section 8.7. Severability. If any provision or provisions of
this Agreement shall be held to be invalid, illegal or unenforceable for any
reason whatsoever, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby; and, to the
fullest extent possible, the provisions of this Agreement shall be construed so
as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
Section 8.8. Notices. Promptly after receipt by Indemnitee of
notice of the commencement of any action, suit or proceeding, Indemnitee shall,
if he anticipates or contemplates making a claim for expenses or an advance
pursuant to the terms of this Agreement, notify the Company of the commencement
of such action, suit or proceeding; provided, however, that any delay in so
notifying the Company shall not constitute a waiver or release by Indemnitee of
rights hereunder and that any omission by Indemnitee so to notify the Company
shall not relieve the Company from any liability that it may have to Indemnitee
otherwise than under this Agreement. Any communication required or permitted to
the Company shall be addressed to the Secretary of the Company and any such
communication to Indemnitee shall be addressed to the Indemnitee's address as
shown on the Company's records unless the Indemnitee specifies otherwise and
shall be personally delivered or delivered by overnight mail delivery. Any such
notice shall be effective upon receipt.
Section 8.9. Binding Effect. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and assigns.
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Section 8.10. Governing Law. This Agreement shall be
construed in accordance with and governed by the laws of the State of Delaware
without regard to any principles of conflict of laws that, if applied, might
permit or require the application of the laws of a different jurisdiction.
Section 8.11. Headings. The Article and Section headings in
this Agreement are for convenience of reference only, and shall not be deemed
to alter or affect the meaning or interpretation of any provisions hereof.
Section 8.12. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
Section 8.13. Use of Certain Terms. As used in this
Agreement, the words "herein," "hereof," and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
paragraph, subparagraph, section, subsection, or other subdivision. Whenever
the context may require, any pronoun used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns, pronouns and verbs shall include the plural and vice versa.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered to be effective as of the date first above written.
CONOCO INC.
By:
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Name:
Title:
INDEMNITEE
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